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September 9, 1969

AIRCRAFT OWNERS AND PILOTS ASSOCIATION and MAX KARANT, FRANK K. SMITH, and WILLIAM D. STROHMEIER on Behalf of Themselves and All Others Similarly Situated, Plaintiffs

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING

DOOLING, District Judge:

The plaintiff association of aircraft owners and pilots and sixteen individual pilots and owners as plaintiffs and intervenors have sued to enjoin the further enforcement by the defendant Port of New York Authority of a "take-off" fee of twenty-five dollars exacted from each aircraft landing or taking off from the three major New York area airports during certain peak traffic hours. The twenty-five dollar fee does not apply to any aircraft operating with a seating configuration of twenty-five or more passengers nor does it apply to certain aircraft operating on designated runways as helicopters or as air taxis. The plaintiff association, which appears to have some 145,000 members, and the individual plaintiffs and intervenors belong to a class styled General Aviation, an ill-defined class which has in common the fact that in the generality of instances their aircraft would have to pay the twenty-five dollar fee if they landed or took off at the three major New York area airports during the peak hours.

 The Port Authority has now moved to dismiss the complaint and for summary judgment; the plaintiffs, who had earlier moved for an injunction and are now holding that motion in abeyance, oppose the Port Authority's motion both on the ground that there are factual issues to be determined in the case in any event and on the further ground that even on the genuinely uncontested facts the fee must be held to be illegal and its exaction must be enjoined. It is concluded that the case is one within the jurisdiction of the Court, that none of the counts is required to be dismissed on jurisdictional grounds, and that the defendants are entitled to summary judgment at this time.


 The basic and perhaps controlling facts in the case are so well known publicly as almost to be a matter of judicial notice. The Port of New York Authority, which now operates the three major airports and Teterboro airport, was formed by interstate compact between New Jersey and New York, it is charged with carrying out the "Comprehensive Plan for Development of the Port of New York." See, as embodying the compact and implementing legislation, New York Unconsolidated Laws Sections 6401, et seq. and particularly Sections 6407, 6411, 6412, 6451, 6452 and 6631-6647 (the last sections referring to air terminals); and see as to gubernatorial veto power Sections 7151-7154. Under the air terminals portion of the present day compact it is "the policy of the two states to encourage the integration of such air terminals so far as practicable in a unified system"; the Port Authority is authorized to "maintain and operate air terminals" and "air terminals" is defined to mean facilities "necessary, convenient or desirable for the landing, taking off, accommodation and servicing of aircraft of all types, including . . . any . . . contrivance . . . used for the navigation of . . . air or space, operated by carriers . . ., or for the landing, taking off, accommodation and servicing of aircraft owned or operated by persons other than carriers"; the Port Authority "shall be regarded as performing an essential governmental function in undertaking the . . . maintenance or operation [of air terminals], and in carrying out the provisions of law relating thereto"; the Authority is authorized to apply directly to the proper federal officials "for federal loans or grants in aid of air terminals owned or operated by it"; with certain not presently material exceptions "all details of financing, construction, leasing, charges, rates, tolls, contracts and the operation of air terminals owned or controlled by the Port Authority shall be within its sole discretion and its decision in connection with any and all matters concerning such air terminals shall be controlling and conclusive." No action taken at any meeting of the Authority by any New York Commissioner has any effect until the Governor of New York has an opportunity to veto the same. The veto power must be exercised within ten days after the Governor receives the minutes of the action taken at the meeting; there is no pocket-veto; the action takes effect unless vetoed within the time limit. The gubernatorial veto nullifies the attempted action of the New York Commissioner or Commissioners involved. See New York Unconsolidated Laws Sections 6631, 6633, 6634, 6640, 6646 and 7151-7154.

 The Authority operates John F. Kennedy International Airport, LaGuardia Airport and Newark Airport, at which the twenty-five dollar fee is in effect, and it also operates Teterboro at which the charge is not in effect. The three major airports, Kennedy, LaGuardia and Newark, accommodate substantially all of the area's commercial airline traffic, and they have in the past handled General Aviation, including air taxis, and helicopters, on the same basis in terms of arrival and takeoff as the scheduled commercial airline passenger traffic. General Aviation accounts for a surprisingly large percentage of the "operations" (that is, landings and takeoffs) at the three major New York area airports. While there is the usual unaccountable failure of counsel to agree explicitly on the obviously relevant and little disputable figures, it appears without contradiction that in July 1968 16.6 percent of the "movements" at Kennedy were General Aviation, 11.7 percent being air taxi and 4.9 corporate and private; 32.1 percent of the movements at LaGuardia were General Aviation of which 8 1/2 percent were air taxi and 23.6 percent corporate and private; and that 29.6 percent of the movements at Newark were General Aviation divided 14.3 percent to air taxi, and 15.3 percent corporate and private planes. Another set of figures used by the Property Administrator of the Federal Aviation Administration in an affidavit in another case indicates that in 1968 the General Aviation percentages were 14 percent at Kennedy, 29 percent at LaGuardia and 23 percent at Newark. Other figures, such as those included in Exhibit F of defendants answers to the interrogatories, indicate that in 1966 General Aviation accounted for 32 percent of total movements at the three major airports combined and that air taxi traffic, far the fastest growing segment of the growing General Aviation workload, came to about 44 percent of the General Aviation total. No doubt these figures are subject to endless qualification, but they acceptably indicate that the General Aviation traffic dealt with is substantial, and that the air taxi segment of it is a definable segment and one which has been singled out for differential treatment.

 The affidavit of the Property Administrator in the other case also indicates, what is the subject of a very generalized notice, that in the fiscal year 1968 domestic and international carriers flew 106.5 billion passenger miles as against an estimated 3.7 billion passenger miles flown by General Aviation aircraft. The point of such a statistic is to emphasize that in general, and as the twenty-five passenger configuration limitation indicates, General Aviation uses smaller aircraft and quite possibly reflects a shorter average haul than the carriers. In result that would mean - and this is not debated - that the average carrier takeoff and landing will reflect the takeoff and landing of a very much larger number of passenger seats than will the average takeoff and landing of a General Aviation plane. How this would be affected by sub-classifying General Aviation between "all other" General Aviation and air taxis is surely speculative at this time. The general picture is plain: General Aviation is not insubstantial in volume, disregarding the air taxi traffic, that it does not, operation for operation, handle so many passengers on average as do the carriers, and that until August 1, 1968, as a practical matter it had the same access, on a first-come, first-served basis to the facilities of major airports that the common carriers by air enjoyed.

 Effective August 1, 1968, the Authority, for the professed purpose of relieving congestion and achieving maximum efficient operation at the three major airports, and with the professed intention of influencing General Aviation operators to transfer their operations where possible away from the runways and traffic control patterns at the three major airports during peak traffic periods, adopted a twenty-five dollar minimum charge to be put into effect during defined peak operating periods in lieu of the pre-existing five dollar minimum fee. The peak hours were defined as from 8 A.M. until 10 A.M. on Monday through Friday and from 3 P.M. until 8 P.M. on all seven days of the week. The fee applied in terms of twenty-five dollars per takeoff but it applied to any aircraft which either took off or landed during the peak hours and which had a seating configuration of less than twenty-five passengers. As originally adopted there were two exceptions: first, all helicopters were excluded and, second, air taxis operating pursuant to Authority permits, and permits were to be issued to air taxi operators conducting regular service for airline connecting passengers at Kennedy provided their aircraft operated at Kennedy from runways not used by the scheduled airlines. On September 5, 1968, the Authority approved its executive director's having waived the twenty-five dollar fee on FAA authorized "STOL" aircraft using the 1,100 foot LaGuardia runway 1-19 (a use taking place under VFR conditions and under air traffic control patterns and procedures independent of those for the runways used by the scheduled airlines), and authorized the executive director to revise the schedule of charges on air taxi operators at Newark when their aircraft operated from runways not being used by the scheduled airlines provided the air taxis were conducting regular service for airline connecting passengers at Newark airport. On December 5, 1968, the Authority authorized the executive director to agree with the helicopter company, which had substituted fixed wing "STOL" aircraft for its helicopter service in some two-thirds of its flights, that the fixed wing operations would not be subject to the twenty-five dollar minimum fee at Kennedy or Newark if conducted on runways not being used by other scheduled airlines. On March 9, 1969, the executive director was authorized by the Authority again to revise the schedule of charges so that at LaGuardia both New York Airways for its fixed wing operations and air taxis generally would not be subject to the minimum charge for operations on runway 32 at LaGuardia if conducted pursuant to Port Authority permits issued to them on the basis that they were operating regular service for airline connecting passengers at LaGuardia. The resolution was based on a report that such operations on runway 32 at LaGuardia would demonstrably not interfere with operations of the scheduled airlines. Finally on June 12, 1969, and in view of the newly effective Federal Aviation Administration "High Density Traffic Airports" regulations, the Authority authorized the executive director to modify the definition of the peak hours during which the twenty-five dollar minimum fee would be exacted in the light of any scheduling changes that flowed from alterations in peak traffic conditions in consequence of the adoption of the new FAA regulations.

 The twenty-five dollar minimum fee openly and designedly "favored" the large plane landings and takeoffs during peak hours at the expense of small plane operations, and, in the small plane classification, it singled out for favored treatment air taxis, and particularly those conducting a connecting service to the airlines. Meanwhile and pursuant to APA rulemaking procedures (see 33 F.R. 12,580 and 33 F.R. 17,896) the Federal Aviation Administration gave notice of proposed amendments to Part 93 of the Aeronautical and Space Regulations and adopted the so-called "High Density Traffic Airports" regulations of 14 C.F.R. §§ 93.121, et seq. (Subpart K). The regulations designated Kennedy, LaGuardia, Newark, O'Hare (Chicago) and Washington National airports as "High Density Traffic Airports." The regulations, Section 93.123(a), limited and allocated among classes of users, the hourly number of IFR operations (take-offs and landings) that could be reserved at the specified airports per hour. So far as the Authority's airports were concerned the limiting and allocating IFR operations schedule is as follows: User Kennedy La Guardia Newark Air Carriers except air taxis 70* 48 40 Scheduled air taxis 5 6 10 Other 5 6 10

 The allocations of reservations did not apply from midnight to 6 A.M. local time but the total hourly limitation remained applicable throughout the twenty-four hour day. At Kennedy from 5 P.M. to 8 P.M. local time the total of 80 reservations were allocated to air carriers other than air taxis. Under Section 93.123(b) in any hour unused reservations of one user class were reallocated to the next lower class; that is, unused carrier ones went to scheduled air taxis, and those unused by scheduled air taxis went to the "other" classification.

 The numerical allocation applied only to IFR reservations. (The letters "IFR" refer to Instrument Flight Rules, and the mated expression VFR signifies Visual Flight Rules and relates to operations conducted when the ceiling reported at the airport is at least a thousand feet and the reported ground visibility at least three miles.) Under 14 C.F.R. § 93.125, it is provided that unless otherwise authorized by Air Traffic Control in a letter of agreement executed pursuant to another section of the regulations, no one may operate an aircraft to or from a high density traffic airport unless he has both received an arrival or departure reservation from Air Traffic Control and has filed an IFR or VFR flight plan for that operation. Additional operations take place, as provided in § 93.129 under both IFR and VFR without reference to the maximum IFR limitation if the operator has obtained a departure or arrival reservation from Air Traffic Control. Such a reservation is granted by Air Traffic Control when the aircraft may be accommodated without significant additional delay to the operations allocated for the airport for which the reservation is requested and, in the case of operation under VFR, provided VFR conditions prevail. Operations under letter agreements (cf. Section 93.129(c)) relate to the situation in which the aircraft is operated without interference to any other aircraft operation, but the prerequisite to such operation is a letter of agreement between the airport management, the operator and the appropriate Air Traffic Control facility.

 The High Density Traffic Airports regulations were adopted with knowledge that the twenty-five dollar fee arrangement prevailed at the three New York area airports. Their adoption was opposed, modifications were suggested and some were made before adoption. The FAA said explicitly, in its action promulgating the new regulations, that they were intended to provide relief from excessive delays at certain major terminals and not to correct a safety problem, were intended to deal with the congestion problem and with the problem of Air Traffic Controller workload, and that the letter agreement regulations had in mind the helicopter and the STOL and VTOL operations that might be authorized at particular airports to the extent conducted on non-interfering runways. The prefatory statement of the FAA referred to the Port of New York Authority higher fee schedules adopted effective August 1, 1968, and characterized them as having been adopted for the express purpose of shifting general aviation traffic away from peak hours. The FAA considered that in the three months since the fees were imposed General Aviation operations at the three New York airports had declined by more than twenty-five percent and remarked that, while other factors might account for part of the decline, much of it was doubtless attributable to the fee increase. The FAA added that since the fee schedule was the subject of litigation its long run effect was uncertain. It noted that at September 11, 1968, the FAA itself had imposed an increased minimum charge for landing at Washington National Airport as set forth at 33 F.R. 12833. Noting this and other programs of various kinds put into effect to relieve congestion, the FAA nevertheless considered it obvious that congestion would again reach serious proportions unless additional restraints were placed on aircraft demand for the use of airport facilities. It said that no short-term solutions offered any substantial relief and observed that for the fiscal years ending October 1966, 1967 and 1968 respectively air carrier operations at the three New York airports combined has increased from 618,297 to 670,179 and then to 715,846 with more airplanes being delivered daily to initiate new airport load. The FAA, after saying that additional legislation for the expansion of airport facilities was required, continued (33 F.R. 17,897):

"In the meantime, the public interest in efficient, convenient, and economical air transportation requires more effective use of airport and airspace capacity. The authority of the FAA to regulate aircraft operations to reduce congestion is clear. The plenary authority conferred by the Federal Aviation Act to regulate the flight of aircraft to assure the safe and efficient utilization of the navigable air space is well established by practice and judicial decision. As indicated in Notice 68-20, it is anticipated that, subject to the approval of the Civil Aeronautics Board, the air carriers can arrive voluntarily at decisions to reduce schedules so as not to exceed the total allocations established by this rule in the interest of efficient air space utilization . . . this rule as presently drawn contemplates that an agreement will be in force on the effective date of the rule, April 27, 1969.
* * *
"This rule grants a greater priority to certificated air carriers, who provide common carrier service in accordance with the policy of recognizing a national interest in maintaining a public mass air transportation system, offering service on equal terms to all who would travel. For the traveler today, there is frequently no feasible alternative mode of travel. The concept of 'first come - first served' remains as the fundamental policy governing the use of air space so long as capacity is adequate to meet the demands of all users without unreasonable delay or inconvenience. When capacity limitations compel a choice, however, the public service offered by the common carrier must be preferred. This policy is fully consistent with the Federal Aviation Act's ...

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